Knowing Employment of Unauthorized Workers

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Last Updated: July 2026

Federal law prohibits employers from knowingly hiring or continuing to employ individuals who are not authorized to work in the United States.

“Knowing” includes more than direct or actual knowledge. An employer may also have constructive knowledge when available facts and circumstances would lead a person exercising reasonable care to know that an employee is unauthorized.

Employers face competing risks. Ignoring credible information may result in civil penalties or, in more serious cases, criminal investigation. Reacting too aggressively to an expired document, Social Security number mismatch, E-Verify mismatch, or unsupported allegation may create discrimination or wrongful-termination exposure.

The appropriate response depends on what the employer learned, how reliable the information is, whether it concerns current employment authorization, and what the employer does next.

Actual Knowledge, Constructive Knowledge, and Suspicion

Issue	General Meaning
Actual knowledge	The employer directly knows that the employee is not authorized to work
Constructive knowledge	Available facts may support an inference that the employer should have known through the exercise of reasonable care
Suspicion	Information may justify further review but does not yet establish unauthorized employment
Discriminatory assumption	A conclusion based on appearance, accent, national origin, name, citizenship status, or another protected characteristic

A discrepancy requiring review should not automatically be treated as proof of unauthorized employment.

What Federal Law Prohibits

Under 8 U.S.C. § 1324a, an employer may not:

Knowingly hire an individual who is unauthorized to work.
Continue employing an individual knowing that the individual is or has become unauthorized.
Recruit or refer an unauthorized individual for employment for a fee.
Use a contract or subcontract to obtain labor while knowing that the contract worker is unauthorized.

The prohibition applies to knowledge existing at the time of hire and knowledge acquired after employment begins.

For example, an employee may have been authorized when hired but later lose employment authorization. An employer also may learn after hire that information or documentation used during the original Form I-9 process was inaccurate.

What Is Actual Knowledge?

Actual knowledge may exist when the employer receives reliable and direct information establishing that an employee is not currently authorized to work.

Examples may include:

The employee states that they are not authorized to work.
A government agency makes a final determination concerning the employee’s work authorization.
Temporary employment authorization expires and the employer knows no extension or other authorization applies.
A manager knowingly accepts documents belonging to another person.
Company representatives arrange for an employee to work under a false identity.
The employer confirms reliable evidence that a worker is currently unauthorized.

The exact information matters. An employee’s statement that they used false documents when hired is not necessarily an admission that they are unauthorized today.

What Is Constructive Knowledge?

Under 8 C.F.R. § 274a.1(l), constructive knowledge includes knowledge that may fairly be inferred from facts and circumstances that would lead a person exercising reasonable care to know about a particular condition.

The regulation provides that constructive knowledge may include situations in which an employer:

Fails to complete or improperly completes Form I-9.
Has information available indicating that an individual may not be authorized to work.
Acts with reckless and wanton disregard for the legal consequences of allowing another person to introduce an unauthorized worker into the workforce or act on the employer’s behalf.

The regulation states that constructive knowledge “may include” these situations. A defective Form I-9 or other discrepancy does not automatically establish that an employee is unauthorized.

Constructive knowledge is determined from the totality of the circumstances.

Information That Does Not Necessarily Establish Unauthorized Employment

The following events may require review, but they do not necessarily establish actual or constructive knowledge:

Event	General Significance
Missing or defective Form I-9	Compliance problem, but not automatic proof that the employee is unauthorized
Expired Permanent Resident Card	Does not mean lawful permanent resident status expired
Expired driver’s license	Does not affect employment authorization and does not require reverification
Expired Employment Authorization Document	Requires review because an automatic extension or other authorization may apply
Social Security number mismatch	Does not, by itself, determine immigration status or work authorization
Pending E-Verify mismatch	Is not a final determination
E-Verify Final Nonconfirmation	Creates substantially greater risk and requires prompt review
Employee says previous documents were false	Requires a determination of current identity and work authorization
ICE Notice of Discrepancies	Means ICE could not determine authorization from the records reviewed
ICE Notice of Suspect Documents	Creates serious risk and requires prompt action
Anonymous allegation	Requires an assessment of credibility and reliability
Foreign appearance or accent	Cannot support an inference of unauthorized employment

Defective or Missing Forms I-9

The constructive-knowledge regulation identifies failure to complete or properly complete Form I-9 as a potentially relevant circumstance.

An employer may discover that:

A Form I-9 was never completed.
Section 1 or Section 2 is incomplete.
The employer failed to sign or date Section 2.
Required document information is missing.
The wrong edition was used.
A reverification was not documented.
A completed form cannot be located.

The employer should generally correct the problem promptly and transparently. A missing or late form should not be backdated.

The employee should correct errors in Section 1. The employer should correct errors in Section 2 and Supplement B. The employer should consider attaching a signed and dated explanation when a form is completed late or a substantial correction is made.

An internal review should ordinarily cover all Forms I-9 or a group selected through neutral and nondiscriminatory criteria. Employers should not select employees for review based on accent, appearance, national origin, citizenship status, or perceived immigration status.

More detailed correction procedures are available on our Internal Form I-9 Audits page.

Expired Documents and Reverification

Employers should distinguish between expiration of a document and expiration of employment authorization.

Employers generally should not reverify:

U.S. citizens.
Noncitizen nationals of the United States.
Lawful permanent residents who presented a Permanent Resident Card.
List B identity documents, including driver’s licenses.

An expired Permanent Resident Card ordinarily does not mean that lawful permanent resident status expired. An expired List B document does not require reverification.

When temporary employment authorization expires, the employer generally must reverify by the applicable expiration date. For reverification, the employee may choose an acceptable List A or List C document. The employee does not need to provide a List B document.

Before concluding that employment authorization expired, the employer should determine whether an automatic extension or other continuing authorization applies.

Relevant information may include:

The document category.
The expiration date.
The filing date of a renewal application.
A USCIS receipt notice.
The employee’s immigration classification.
A Federal Register notice.
Other temporary evidence recognized by USCIS.

USCIS ended the general automatic EAD extension process for many renewal applications filed on or after October 30, 2025. Some earlier qualifying renewal applications may remain covered by prior extension rules, and other extensions may arise under different legal authority.

Employers should review current USCIS employment-authorization extension guidance before taking adverse action based on an expired document.

Employees Who Previously Used False Documents

An employee may disclose during an audit that a document used at hire was false, belonged to another person, or contained inaccurate information.

The employer should determine whether the employee is currently authorized to work.

According to joint ICE and Department of Justice guidance, the Form I-9 rules do not require termination when an employee previously lacked authorization or used false documents but is now authorized to work.

The employer may complete a new Form I-9 using the employee’s current identity and acceptable documents. The new form should be attached to the prior form with a signed and dated explanation. The original form should not be destroyed or concealed.

Separate questions may arise under an employer’s honesty, identity, background-check, or workplace policies. Those policies should be reviewed consistently and with employment counsel where appropriate.

Social Security Number Mismatches

A mismatch between an employee’s name and Social Security number does not, by itself, establish that the employee is unauthorized.

A mismatch may result from:

A transcription or payroll error.
A name change.
Multiple or hyphenated surnames.
An error in government records.
Marriage, divorce, or naturalization.
Identity theft.
Fraud.

The employer should generally check its own records first. If the employer’s information appears accurate, it should notify the employee privately and provide a reasonable opportunity to address the discrepancy.

The employer should not:

Assume that the employee is unauthorized.
Require a Social Security card for Form I-9 purposes.
Demand an immigration document.
Complete a new Form I-9 solely because of the mismatch.
Take adverse action based solely on the mismatch.
Apply different procedures based on citizenship status or national origin.

The Department of Justice has stated that receiving a no-match notice does not, standing alone, create constructive knowledge. Its Social Security Number No-Match FAQs provide additional guidance.

E-Verify Results

An E-Verify mismatch is not a final determination that an employee is unauthorized.

The employer should:

Notify the employee privately.
Provide the required Further Action Notice.
Allow the employee to decide whether to take action.
Make any required referral promptly.
Permit the employee to continue working during a timely contested mismatch.
Avoid prohibited adverse action while the case remains pending.

A Final Nonconfirmation is more significant. Before acting, the employer should confirm that the correct information was submitted, the employee received the required notices, applicable procedures were followed, and the result was not caused by an employer or system error.

An employer that continues employing an individual after a Final Nonconfirmation may face a rebuttable presumption of knowing employment.

Additional information is available on our E-Verify Compliance page.

ICE Notices of Discrepancies and Suspect Documents

Notice of Discrepancies

A Notice of Discrepancies generally means ICE could not determine the employee’s work authorization from the Form I-9 and documents reviewed.

The employer should give the employee a copy of the notice and an opportunity to provide additional information or documentation.

A Notice of Discrepancies is not necessarily a final determination that the employee is unauthorized.

Notice of Suspect Documents

A Notice of Suspect Documents generally states that ICE believes documents reviewed during the inspection are invalid or do not relate to the employee.

This notice creates substantially greater risk than an ordinary Form I-9 error.

The employer should:

Provide the employee with a copy.
Explain the specific concern.
Provide an opportunity to respond.
Follow the deadline in the notice.
Review any evidence of current employment authorization.
Document its decision.

Continuing employment after the issue remains unresolved may support a knowing-employment allegation.

Additional information is available on our ICE Notices of Suspect Documents page.

Anonymous Tips and Workplace Allegations

An allegation that an employee is unauthorized may require review, but the employer should not automatically presume that it is accurate.

The employer should consider:

Whether the source has firsthand knowledge.
Whether the allegation contains specific facts.
Whether evidence supports the allegation.
Whether the source may be retaliating against the employee.
Whether the claim relies on appearance, accent, language, name, or national origin.
Whether comparable allegations have been handled consistently.

Joint ICE and Department of Justice guidance cautions employers against heightened Form I-9 scrutiny based on unsubstantiated, retaliatory, or anonymous tips lacking indications of reliability.

Managers should refer these allegations to designated HR or legal personnel. They generally should not demand documents or suspend employees based on rumors.

Knowledge Held by Managers and Supervisors

Information received by an owner, executive, HR representative, recruiter, hiring manager, supervisor, or another company agent may create risk for the employer.

Whether an individual’s knowledge will be attributed to the company is fact-specific. Relevant factors may include the individual’s authority, role, responsibilities, and whether the person was acting for the employer.

Employers should establish a written escalation process for:

Employee statements concerning work authorization.
Suspected identity sharing.
Requests to place workers under another person’s name.
Staffing-company admissions.
Government communications.
Whistleblower complaints.
Suspected document fraud.

Managers should be instructed not to independently reverify, confront, suspend, or terminate employees.

Staffing Agencies and Contract Labor

Using a staffing agency does not necessarily eliminate employer exposure.

Under 8 C.F.R. § 274a.5, a company that uses a contract or subcontract to obtain labor while knowing that a worker is unauthorized may be treated as having hired the worker.

A customer company generally should not complete Forms I-9 for workers genuinely employed by an independent staffing agency. It also should not routinely demand immigration documents from the agency’s employees.

The company should not ignore credible information that a contractor is knowingly supplying unauthorized workers.

Potential warning signs may include:

The staffing company admits that particular workers are unauthorized.
Managers direct workers to use false names.
Management knowingly permits identity sharing.
Workers are concealed or replaced when ICE arrives.
A recruiter offers to obtain or create false documents.

Vendor agreements may include compliance representations, notice requirements, audit rights, cooperation provisions, and indemnification. These provisions do not necessarily protect a company that actually knows unauthorized labor is being supplied.

How an Employer Should Respond

A reasonable response generally includes six steps.

1. Centralize the Matter

Potential work-authorization concerns should be directed to designated HR, compliance, or legal personnel.

Supervisors generally should not:

Demand immigration documents.
Require a new Form I-9.
Tell the employee which document to provide.
Search databases independently.
Suspend or terminate the employee.
Discuss the matter with coworkers.
Alter or recreate records.

2. Identify the Facts

The employer should determine:

Who provided the information.
Whether the source has firsthand knowledge.
Whether the information is specific and reliable.
Whether it is consistent with company records.
Whether it could be retaliatory.
Whether it concerns current authorization or only a past event.
Whether a government agency made a determination or merely requested information.

The employer should preserve the original communication and distinguish confirmed facts from assumptions.

3. Review Existing Records

Before requesting anything from the employee, the employer should review:

The Form I-9.
Supplement B and prior reverifications.
Retained document copies.
E-Verify records.
Receipt notices and extension documents.
Company immigration-sponsorship records.
Relevant payroll information.
ICE correspondence.
Internal-audit notes.
Electronic audit trails.

The employer should determine whether the discrepancy resulted from its own error.

4. Notify the Employee Privately

The employee should receive specific and neutral notice of the concern.

A possible explanation is:

The company is reviewing its Forms I-9 to evaluate compliance with federal employment-verification requirements. During that review, we identified a question concerning your form. This is not a conclusion that you are unauthorized to work. We would like to explain the specific issue, provide you with the relevant records, and give you an opportunity to respond.

If the review resulted from an ICE inspection, the employer should accurately disclose that fact. Joint ICE and Department of Justice guidance recommends that employers explain whether an audit is independent or conducted in response to a government directive.

5. Allow the Employee to Choose Acceptable Documents

For completion or correction of Section 2, the employee generally may choose:

One List A document; or
One List B document and one List C document.

For reverification, the employee may choose an acceptable List A or List C document.

The employer generally should not demand a particular document. If a specific document has been identified as invalid or not relating to the employee, the employer may explain that the questioned document cannot resolve the discrepancy.

6. Provide a Reasonable Opportunity and Document the Result

The employer should provide a written deadline when possible.

The notice should identify:

The specific discrepancy.
The date notice was provided.
The applicable response deadline.
The person to contact.
Whether additional time may be requested.
Whether a government deadline applies.
The potential consequences of failing to respond.

There is no universal response period for every internal audit. The employer should consider the nature of the issue, government processing times, the employee’s efforts, and treatment of comparable cases.

The 10-day period discussed in joint government guidance concerns an ICE Notice of Suspect Documents. It does not automatically govern a voluntary internal audit.

Can the Employee Continue Working During the Review?

A missing Form I-9, Social Security number mismatch, pending E-Verify mismatch, expired identity document, or unsupported allegation does not necessarily require suspension or termination.

Automatically removing an employee from work may create discrimination, wage, contract, or other employment-law concerns.

The employer should consider:

The reliability of the information.
Whether the government made a determination.
Whether the employee claims to be authorized.
Whether the employee provided facially valid evidence.
Whether an automatic extension may apply.
Whether the employee is pursuing a correction.
Whether the employer contributed to the discrepancy.
How comparable cases were handled.

If the employer has actual or constructive knowledge that the employee is unauthorized, federal law prohibits continued employment.

An unpaid suspension, reduction in hours, or removal from assignments may constitute adverse action. Employers should consider case-specific immigration and employment-law advice before imposing an interim measure based on unresolved information.

Potential Outcomes

The Discrepancy Is Resolved

The employer should complete any appropriate correction or reverification and document the resolution.

The Employee Is Currently Authorized but Previously Used False Information

The employer may complete a new Form I-9 using the employee’s current identity and acceptable documents. The new form should be attached to the prior form with a signed and dated explanation.

The Form I-9 rules do not require termination solely because the employee previously lacked authorization or used false documents but is now authorized.

The Information Remains Inconclusive

The employer should determine whether additional time is reasonable based on the employee’s efforts, available evidence, government processing times, and the strength of the original concern.

The employer should not leave the matter open indefinitely, but it also should not impose a deadline the employee could not reasonably satisfy.

The Employee Does Not Respond

Before taking action, the employer should confirm that the employee received clear notice, understood the request, had a reasonable opportunity to respond, could choose acceptable documents, and was treated consistently.

Failure to establish identity or employment authorization after a fair process may support termination, depending on the facts.

The Employee Admits Being Currently Unauthorized

The employer generally cannot continue the employment.

The employer should document the statement, preserve relevant records, address final-pay and benefits issues, and determine whether legal advice is appropriate.

The company should not transfer the employee to another payroll, classify the employee as an independent contractor, or route the employee through a staffing company to avoid the employment-authorization rules.

Correcting the Form I-9

Corrections should be transparent.

For a paper Form I-9, the responsible person should generally:

Draw a line through incorrect information.
Enter the correct information.
Initial and date the correction.
Attach an explanation where appropriate.
Preserve the original form.
Avoid erasing, correction fluid, overwriting, or backdating.

Employees should correct Section 1. Employers should correct Section 2 and Supplement B.

Electronic systems should preserve the original entry, correction, person making the change, date, and reason. The employer should confirm that the audit trail captured the correction.

Civil and Criminal Consequences

Knowing employment is different from an ordinary Form I-9 paperwork violation.

Potential consequences may include:

Civil penalties for each unauthorized worker.
A cease-and-desist order.
Future compliance requirements.
Civil penalties for related Form I-9 violations.
Immigration-related discrimination claims.
Government-contract or licensing consequences.
Criminal investigation in more serious cases.

The current inflation-adjusted civil penalty ranges for knowingly hiring or continuing to employ unauthorized workers depend on the employer’s prior history. The highest range for subsequent orders may exceed $28,000 per worker.

A pattern or practice of knowing employment may also result in criminal fines and possible imprisonment under 8 U.S.C. § 1324a(f).

Additional criminal allegations may arise when the facts involve false documents, identity fraud, concealment, false statements, conspiracy, obstruction, or destruction of records.

An ordinary or negligent Form I-9 error should not automatically be characterized as criminal conduct.

Detailed information about penalty calculations and mitigation is available on our Form I-9 Fine Reduction page.

Discrimination Risk

An employer attempting to avoid knowing-employment liability may create a different legal problem if it applies Form I-9 requirements improperly.

Potential violations may include:

Requesting more or different documents than required.
Rejecting valid documents because of citizenship status or national origin.
Requiring lawful permanent residents to present green cards.
Requiring noncitizens to provide Employment Authorization Documents.
Rechecking only employees believed to be foreign.
Terminating an employee solely because of a Social Security number mismatch.
Taking adverse action during a contested E-Verify mismatch.
Applying shorter deadlines to noncitizens.
Retaliating against an employee who questions an improper request.
Conducting a selective audit based on national origin or perceived immigration status.

The employer’s response should focus on specific and reliable information concerning current employment authorization.

Preventing Constructive-Knowledge Problems

Employers should consider:

Maintaining a written Form I-9 policy.
Training HR and hiring personnel.
Conducting periodic internal audits.
Tracking required reverification dates.
Distinguishing document expiration from authorization expiration.
Establishing a manager-escalation procedure.
Using consistent employee notices.
Documenting response periods and extension decisions.
Reviewing staffing and contractor agreements.
Preserving reliable paper or electronic records.
Maintaining a government-inspection and raid-response plan.
Consulting immigration and employment counsel when a matter presents competing risks.

Common Employer Mistakes

Common mistakes include:

Treating every expired document as proof of unauthorized employment.
Treating a Social Security number mismatch as an immigration determination.
Taking adverse action during a pending E-Verify mismatch.
Demanding a particular document.
Requiring new Forms I-9 only from noncitizens.
Applying a 10-day deadline to every internal discrepancy.
Ignoring information known by managers.
Treating every anonymous allegation as reliable.
Failing to follow up.
Backdating or replacing original records.
Assuming staffing vendors bear all responsibility.
Treating previous false documents as proof of current unauthorized employment.
Applying policies inconsistently.

Frequently Asked Questions

What is constructive knowledge?

Constructive knowledge means knowledge that may fairly be inferred from facts and circumstances that would lead a person exercising reasonable care to know that an employee is unauthorized.

Does a missing Form I-9 prove that an employee is unauthorized?

No. It is a compliance problem, but it does not automatically prove that the employee lacks employment authorization.

Does an expired green card mean the employee cannot work?

No. Lawful permanent resident status ordinarily does not expire when the card expires.

Does an expired Employment Authorization Document require termination?

Not always. An automatic extension, Federal Register notice, or other continuing authorization may apply.

Does a Social Security number mismatch establish constructive knowledge?

Not by itself. The employer should check its records and give the employee a reasonable opportunity to address the discrepancy.

Does an E-Verify mismatch mean the employee is unauthorized?

No. A mismatch is not a final determination. The employee should receive the required notice and opportunity to take action.

How much time should an employee receive during an internal audit?

There is no universal deadline. The period should be reasonable based on the discrepancy, government processing times, available documentation, and the employee’s efforts.

Can the employee continue working while resolving a discrepancy?

Often, but not always. An unresolved mismatch or ordinary paperwork error does not necessarily require suspension. The employer cannot continue employment after it has actual or constructive knowledge that the employee is unauthorized.

What if the employee used false documents but is now authorized?

The Form I-9 rules do not require termination solely because the employee previously used false documents but is currently authorized. The employer may complete a new Form I-9 and attach it to the original with an explanation.

Can a company be liable for unauthorized staffing-agency workers?

Potentially. A company may be treated as having hired workers if it knowingly uses a contract to obtain unauthorized labor.

Can a manager’s knowledge be attributed to the company?

Potentially. The answer depends on the manager’s role, authority, responsibilities, and conduct.

Does a properly completed Form I-9 prevent a later constructive-knowledge finding?

Not necessarily. It may support a good-faith defense concerning the original hire, but it does not permit the employer to ignore reliable information received later.

Primary Authorities and Government Guidance

Government guidance may change. The appropriate response may depend on the date of the event, immigration category, documents involved, and language of a government notice.

Related Employer Compliance Resources

Speak With Myers Immigration Law

Constructive-knowledge questions may require an employer to act promptly without making unsupported assumptions about an employee’s immigration status.

Myers Immigration Law assists employers with internal Form I-9 audits, ICE inspections, Notices of Suspect Documents, E-Verify matters, worksite investigations, penalty negotiations, and employer-compliance procedures.

For case-specific questions or concerns, please contact Myers Immigration Law at (210) 640-7424 or info@myersimmigration.com.

This page provides general information and is not legal advice. E-Verify and Form I-9 requirements may depend on the employer’s location, enrollment type, contracts, workforce, hiring practices, and particular facts. Government guidance and applicable laws may change. Employers should review current government instructions and consider obtaining case-specific advice before acting on a mismatch, Final Nonconfirmation, federal-contractor obligation, government inquiry, or possible employment-authorization issue. Consult an experienced Form I-9, E-Verify and employer compliance attorney before taking any action.